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I. Introduction: History & Background

I. Introduction: History & Background

Since the 1973 enactment of the "Free Flow of Information Act," Nebraska has had one of the broader, more absolute shield laws in the nation. Nebraska's shield law has generally been effective in limiting the number of subpoenas issued to reporters and, when such subpoenas have issued, has worked well at the trial court level to impose meaningful limits on the scope of testimony which can be compelled from reporters. The State's appellate courts have not addressed or dealt with shield law issues.

I. Introduction: History & Background

Virginia does not have a shield law, but courts recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. A court faced with a claim of privilege must perform a balancing test, taking into account (1) whether the information sought in the subpoena is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.

I. Introduction: History & Background

Relying on the United States Supreme Court's decision in Branzburg v. Hayes, the Ninth Circuit Court of Appeals offers reporters a relatively broad qualified privilege from compelled disclosure. It has found that in the ordinary civil case the litigant's "interest in disclosure should yield to the journalist's privilege." Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir 1995) (Shoen I). The court also has interpreted the role of the media broadly, declaring that "what makes journalism journalism is not its format but its content." Shoen v.

I. Introduction: History & Background

Idaho does not have a shield statute. Attempts to invoke the protections of the reporter's privilege have been based on constitutional and common law grounds and Idaho courts have developed a very unsettled relationship with the reporter's privilege. In the earliest consideration of the privilege following the U.S. Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the Idaho Supreme Court rejected the privilege, stating that no such privilege had been recognized by the U.S. Supreme Court in Branzburg. Caldero v.

I. Introduction: History & Background

In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure.

I. Introduction: History & Background

New Hampshire does not have a shield law statute, although the New Hampshire Supreme Court has recognized a qualified constitutional privilege to withhold the identity of confidential news sources. There have not been any recent efforts to enact a shield law statute. There has been very little litigation involving the reporter's privilege, and we are unaware of any reporters having been jailed or fined in New Hampshire. As the First Circuit Court of Appeals recently observed in Gray v. St. Martin's Press, 221 F.3d 243, 253, 28 Media L. Rptr.

I. Introduction: History & Background

There is no statutory shield law in Vermont. Accordingly, the following consists of general guidelines for contesting news media subpoenas pursuant to Vermont's Rules of Civil Procedure and Vermont jurisprudence construing the United States and Vermont Constitutions, and Vermont common law.

I. Introduction: History & Background

The Tenth Circuit, and the federal district courts within the circuit, have recognized a qualified reporter's privilege under the First Amendment, that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.

I. Introduction: History & Background

Indiana has a strong shield law that provides an absolute and unqualified privilege protecting reporters from revealing sources of information obtained in the course of newsgathering, whether or not that information was published or broadcast. See Ind. Code §§ 34-46-4-1, 34-46-4-2. It is important to note, however, that this privilege applies only to state related matters. It does not apply to federal matters such as federal grand jury investigations, or cases in federal court involving federal issues. The shield law privilege belongs to the newsgatherer and is absolute.

I. Introduction: History & Background

New Jersey originally adopted a reporter's privilege in 1933. Today New Jersey's newsperson's privilege is one of the strongest in the nation. Our Supreme Court has found "the legislative intent in adopting this statute ...as seeking to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey" In Re Myron Farber, 78 N.J. 259 (1978).